| Greece Cent. School Dist. v Tetra Tech Engrs., Architects & LandscapeArchitects, P.C. |
| 2010 NY Slip Op 08513 [78 AD3d 1701] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| Greece Central School District, Plaintiff, v Tetra Tech Engineers,Architects & Landscape Architects, P.C., Doing Business as Thomas Associates Architects &Engineers, Formerly Known as Thomas Associates, Architects & Engineers, P.C., DefendantThird-Party Plaintiff-Respondent. Christa Construction LLC, Third-Party Defendant-Appellant, et al.,Third-Party Defendants. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City (Marie Ann Hoenings of counsel), forthird-Party plaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (William P. Polito, J.), enteredNovember 12, 2009 in an action for professional malpractice and breach of contract. The order,among other things, denied third-party defendant Christa Construction LLC's motion to dismissthird-party plaintiff's action.
It is hereby ordered that the order so appealed from is unanimously modified on the law by grantingthe motion of third-party defendant Christa Construction LLC and dismissing the third-party complaintagainst it, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking, inter alia, damages based on the [*2]negligent performance of architectural and related services bydefendant/third-party plaintiff (hereafter, defendant) and defendant's breach of a contract with plaintiff.Defendant commenced a third-party action alleging, inter alia, that third-party defendant ChristaConstruction LLC (Christa) breached its contract with plaintiff as the construction manager on theproject at issue and that defendant is a third-party beneficiary of that contract. We agree with Christathat Supreme Court erred in denying its motion to dismiss the third-party complaint against it, and wetherefore modify the order accordingly.
Although the contract between Christa and plaintiff required Christa to perform services fordefendant, such as consulting, providing recommendations on budget matters and reviewing changerequests, it also provided that nothing contained in the contract "shall create a contractual relationshipwith or a cause of action in favor of a third party against either [plaintiff] or [Christa]." Thatunambiguous language is sufficient to negate any intent to permit the contract's enforcement by thirdparties, and thus it cannot be said that defendant was a third-party beneficiary of that contract (see Adelaide Prods., Inc. v BKN Intl. AG,38 AD3d 221, 226 [2007]; Laur & Mack Contr. Co. v Di Cienzo, 274 AD2d 960[2000], lv denied in part and dismissed in part 96 NY2d 895 [2001]; Nepco ForgedProds. v Consolidated Edison Co. of N.Y., 99 AD2d 508 [1984]). Also, based on theunambiguous language of the contract between Christa and plaintiff, we agree with Christa thatdefendant was not in the "functional equivalent of privity" to that contract (see IMS Engrs.-Architects, P.C. v State of NewYork, 51 AD3d 1355, 1357, [2008] lv denied 11 NY3d 706 [2008]). In any event,whether defendant was in the "functional equivalent of privity" to the contract is irrelevant where, ashere, the third-party complaint fails to assert a cause of action for negligent misrepresentation (see Hamlet at Willow Cr. Dev. Co., LLC vNortheast Land Dev. Corp., 64 AD3d 85, 105 [2009], lv dismissed 13 NY3d 900[2009]; Richards Plumbing & Heating Co.,Inc. v Washington Group Intl., Inc., 59 AD3d 311, 312 [2009]; see generally OssiningUnion Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 424 [1989]).
In light of our determination, we need not address Christa's remaining contention.Present—Centra, J.P., Carni, Sconiers and Pine, JJ.